Unintended and Unavoidable: The Failure to Protect Rule and Its Consequences for Undocumented Parents and Their Children

Parents without immigration status in the U nited S tates regularly face the threat of deportation and separation from their children. When an undocumented parent is brought to the attention of law enforcement through the child welfare system, they also face the potential of the loss of legal custodial rights to their children. The child welfare system and immigration enforcement mechanisms operate independent of one another with little regard for how actions in one can impact a parent's legal rights in the other, often permanently separating children from their parents. This article examines the particular issue of undocumented parents who are charged with the failure to protect their children from witnessing or otherwise experiencing abuse committed by a third party. It explores how such a charge, whether founded or unfounded, can result in loss of eligibility for immigration relief to which the undocumented parent would otherwise be entitled, as well as deportation of the parent and permanent separation of parent and child. These issues are situated within the larger context of the normative guideposts of both family and immigration law, namely, the best interests of the child and family unity. It identifies issues for further academic inquiry as well as tips for practitioners who may represent undocumented parents in either the family or immigration systems. Key Points for the Family Court Community: Learn about the potential consequences under family law and immigration law when an undocumented parent's child is abused by a third party Gain strategies for planning with undocumented parents to avoid the loss of the custody of their children in the event of a sudden deportation Be able to identify and address particular concerns for clients who are undocumented victims of domestic violence